Arista v Usenet.com - Chock full of Fed R Civ P

United States District Court (SDNY) Judge Baer's recent decision in Arista Records LLC v. Usenet.Com Inc., No. 07 Civ. 8822, 12/05/08 NYLJ "Decision of Interest" (S.D.N.Y. Nov. 24, 2008) is chock full of federal civil procedure issues. The decision, which granted plaintiff's motion to dismiss or strike Usenet's counterclaims for declaratory judgment, addressed the following issues:

Rule 12(f) - striking redundant pleadings
Rule 8(c)(2) - mistakenly labeling a defense a counterclaim
Rule 12(b)(6) - failure to state a claim
Rule 12(b)(1) - jurisdiction
Rule 41(a) - once answer filed, court has discretion to determine the proper terms of dismissal and whether it is with prejudice (concerning defendant's fear that if plaintiffs were to voluntarily dismiss their complaint, Usenet would be threatened with future litigation by plaintiffs)

The crux of the decision concerns counterclaims. The Court held that counterclaims are viable only when they present an independent case or controversy; counterclaims will be dismissed if they are merely a "mirror image" of the complaint. Therefore, because Usenet's DMCA safe-harbor counterclaims could not stand on their own without the complaint (i.e., the DMCA does not create an affirmative cause of action, but rather a defense), then they were dismissed. Moreover, the court noted, the counterclaims were not factually distinguishable because Usenet had not made any independent factual allegations. (The Court similarly dismissed Usenet's counterclaim seeking a declaratory judgment that its activities do not constitute inducement of copyright infringement, contributory infringement, or vicarious copyright infringement: this counterclaim, too, was a mirror image of plaintiff's copyright infringement claim.)

Lastly, the Court found that Usenet's argument that it would be precluded from recovering costs and attorneys' fees if its counterclaims are were dismissed was without merit. Pursuant to Section 505 of the Copyright Act, the Court would have discretion to award costs and attorneys' fees, irrespective of any counterclaims, if Plaintiff's claims were ultimately to fail.

Ozzy Libel Case - UK/US Distinctions

Billboard reported that "Ozzy Osbourne has accepted undisclosed libel damages and an apology over a U.K. newspaper claim that he was ill at the Brit Awards."

For an interesting review of the distinctions between UK and US libel law, and especially New York State's response to "libel tourism" (New York enacted the Libel Terrorism Protection Act a/k/a Rachel's Law - see Laws of New York 2008, Ch. 66 amending CPLR sections 5304 and 302), see Jennifer McDermott and Chaya F. Weinberg-Brodt, "Growth of 'Libel Tourism' in England and U.S. Response", 06/04/08 N.Y.L.J.

R(ather) I(nteresting) A(rticle) A(ttached)

The New York Law Journal has an interesting article today about the RIAA chasing student infringers on college campuses. The article examines the University/Student relationship (in terms of privacy), and outlines policy concerns over both (i) the RIAA's actions, and (ii)the willingness of academic institutions to comply with discovery requests issued by the RIAA in John Doe infringement suits.

Also, the author draws a parallel between the RIAA's accusations against students for infringement (in their demand letters) and the Debtor/Creditor relationship. The article examines New York, California, and Federal law governing creditor practices.

[Donald N. David, "Privacy Needs Key Despite Music Piracy on Campuses"]

Mary J., Pay to Play

New York Law Journal reports (10/9) that Ms. Blige is not above the law. Blige and others were sued for copyright infringement by song-writer -- who happened to be co-author of the work with Blige's step-father. On the eve of the step-father's deposition, he transferred his rights to another defendant in the case, taking the position that one co-author cannot sue another co-author for infringement. ("Retroactive" transfer to infringer.) Sneaky...

...but no. The Second Circuit shot down the scheme.

If the Court had gone the other way, a giant loop-hole would have existed for successful artists/infringers to buy-out non-party co-authors, and in my humble opinion, defeating justice.

[Davis v. Blige, 05-6844-cv]